This is an appeal from an order denying a motion for dismissal of charges following appellant's rearrest; after appellant's first arrest, the same charges had been dismissed. Appellant argues that dismissal was required by Rule 141(d) of the Pennsylvania Rules of Criminal Procedure, as it read before its recent amendment,*fn1 because the cost of the first prosecution had not been paid. The issue before us is whether Rule 141(d) required such cost to be paid prior to any second prosecution or only in cases where the first prosecution had been found to have been without probable cause. This appeal was originally argued before a three-judge panel of this court but we granted a motion by the Commonwealth for reargument en banc.

Appellant was arrested on June 19, 1977, and charged with the felonies of theft by unlawful taking and theft by receiving stolen property and the misdemeanors of unauthorized use of an automobile, theft by unlawful taking, and theft by receiving property. He was alleged to have been

[ 279 Pa. Super. Page 11]

operating an automobile stolen on May 6, 1977, from Hertz Auto Rental with a license tag separately stolen on some unspecified date. At the preliminary hearing on July 7, 1977, the judge found that a prima facie case had not been established on the felony charges, and they were dismissed; the judge then remanded the misdemeanor charges for trial in Municipal Court.

On August 1, 1977, the Commonwealth withdrew the misdemeanor charges, and appellant was immediately rearrested on all of the original charges, including the two felony charges. Another preliminary hearing was scheduled but before it was held, appellant filed a motion for dismissal pursuant to Rule 141(d). The lower court denied the motion but found that the matter was controlled by a question of law as to which there is substantial ground for difference of opinion, and on August 26, 1977, we granted permission for an interlocutory appeal in this case as authorized by 42 Pa.C.S. § 702(b).

Exactly the same question of the construction of Rule 141(d) was presented to the Supreme Court in Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978). The defendant Cartagena had been rearrested following earlier dismissal of the same charges. His claim that the dismissal of the second complaint was required by Rule 141(d) because the cost of the first prosecution had not been paid was explicitly rejected by Justice O'Brien's plurality opinion. Id., 482 Pa. at 15-16, 393 A.2d at 355. It is true that plurality opinions do not automatically have precedential authority. Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975). However, if the concurring justices in Cartagena had not agreed with the plurality analysis of the requirements of Rule 141(d), a different disposition of the case would have been necessary. Either the cost repayment requirement of the Rule applies to all second prosecutions following any earlier discharge, or it applies only when the discharge includes a finding that the first prosecution had been without probable cause. No other interpretations appear possible. If the requirement applies in all cases, Cartagena

[ 279 Pa. Super. Page 12]

would have been entitled to a discharge, as would appellant in the present case. However, in Cartagena six justices of the Supreme Court joined in denying that relief. Nevertheless, given that the issue is now squarely before us, on reargument, we have concluded that we should not rest our ...

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